Employers have a duty of care in the recruitment process to ensure safe conduct of business. You need to protect your organisation’s assets and keep your employees and anyone who comes into contact with your business safe. Police checks help mitigate risk by giving you information on criminal convictions that may prevent an applicant from being able to perform the inherent requirements of the job.
A National Police Check contains a summary of a person’s police history information in Australia. This includes all findings of guilt unless spent. Whether a finding is spent will depend on state and federal legislation, but generally a spent finding is a criminal offence older than 5 years if convicted as a child, or an offence older than 10 years in any other case.
No one is permitted to check another person’s police record without that person’s consent. Individuals have the right to privacy and freedom from discrimination. The relevant legislation is Charter of Human Rights and Responsibilities 2006, Privacy and Data Protection Act 2014: Organisations, Australian Human Rights Commission Act 1986 (Cth) and the Australian Human Rights Commission Regulations 1989 (Cth).
You should give the applicant an opportunity to address their criminal record and explain the circumstances surrounding any convictions. Each case should be decided in its individual context in relation to the position, your organisation’s policies and any applicable anti-discrimination guidelines. Factors that you might consider include:
For more information, you can refer to the Australian Human Rights Commission’s Guidelines for the Prevention of Discrimination in employment on the Basis of Criminal Record.